CHILD CUSTODY Flashcards
1
Q
THE UNIFORM CHILD CUSTODY
JURISDICTION AND ENFORCEMENT ACT: Purposes
A
- Purposes of Uniform Child Custody Jurisdiction & Enforcement Act (“UCCJEA”) are to avoid jurisdictional disputes regarding child custody & visitation, promote interstate cooperation, & facilitate interstate enforcement of custody & visitation orders.
2
Q
Initial Custody Determination: Primary Test—Home State Jurisdiction
A
- A ct has jurisdiction to initially enter/modify a child
custody/ visitation order if state:
(1) Is child’s home state, or
(2) Was child’s home state w/in past 6 months & child is absent from state, but a parent/person acting as parent (guardian) continues to live in state - Child’s home state is state in which child lived w/ parent (or guardian) for at least 6 consecutive months immediately b/f commencement of proceeding (or state where child has lived since birth if child is younger than 6 months old), disregarding temporary absences.
3
Q
Tip
A
Home state jurisdiction is most important jurisdictional test in this arena, & it is frequently
tested on bar.
4
Q
When “Home State” Rule Does Not Apply
A
- A ct has jurisdiction to enter/modify a child custody/ visitation order if no other state has/accepts home state jurisdiction and:
(1) Child & at least one parent (or guardian) have a significant connection w/ the state, and
(2) Substantial evidence concerning child is available in the state - In addition, ct has jurisdiction to enter/modify a child custody /visitation order if no other state has jurisdiction under another test/if another state w/ jurisdiction defers
5
Q
Modification of Existing Decree
A
- Issuing court has continuing exclusive jurisdiction.
- Another state can only exercise jurisdiction if:
(1) No child/parent (or guardians) continues to reside in issuing state, or
(2) Child no longer has a significant connection w/ issuing state & substantial evidence relating to the matter is no longer available in that state. - Only issuing state can decide if this second test is met.
6
Q
Declining Jurisdiction
A
- A ct that has jurisdiction may decline to exercise its jurisdiction if it determines it is an inconvenient forum under circumstances & that a ct in another state is a more appropriate forum.
- Additionally, a ct may decline to exercise jurisdiction if party seeking to invoke ct’s jurisdiction has engaged in unjustifiable conduct (ex. parent wrongfully took child from another state).
7
Q
Temporary Emergency Jurisdiction—
Abandonment or Abuse
A
- A court may exercise temporary emergency jurisdiction if child has been abandoned/it is necessary in an emergency to protect child b/c child, sibling, or parent is subjected to/ threatened w/ abuse.
8
Q
Enforcement of Another State’s Order
A
- A custody/visitation order of one state can be registered in another state & enforced in that state like one of its own orders.
- In appropriate circumstances, a ct can order respondent to appear in person & award immediate physical possession of child to petitioner.
- The ct may issue a warrant to take physical possession of child if child is imminently likely to suffer serious physical harm/be removed from the state.
- A prosecutor, law enforcement officer, or other public official may take any lawful action to locate a child, obtain the return of a child, or enforce a custody /visitation order at a ct’s request/ if there is a reasonable belief that person holding child has violated a criminal statute.
9
Q
CHILD CUSTODY GENERALLY
A
- Custody of a minor can mean legal custody (the right to make major decisions affecting child’s life) or physical custody (actual possession & control of child).
- Joint custody can mean either joint legal custody, joint physical custody, or both.
10
Q
The Best Interest of the Child Standard
A
- Standard applied in awarding custody & visitation is best interest of child.
- Factors considered in making that determination usually include:
(1) Wishes of parents (Note: Parents have a constitutionally- protected right to care, custody, & control of their children.)
(2) Child’s preference (Preferences of children under age 8 are generally not considered, but preferences of children over age 12 are given great weight. Questioning of child typically occurs in judge’s chambers.)
(3) Child’s relationship w/ parents, siblings, & others involved / parents
(4) Child’s adjustment to home, school, and community
(5) Parties’ mental & physical health
(6) Who has been child’s primary caregiver - The trial ct is vested w/ a great deal of discretion to determine custody & visitation.
- In most states, preference cannot be shown to one parent b/c of gender/financial ability.
- If, after considering all of relevant factors, ct must decide between 2 qualified parents, custody will often go to parent who has been the primary caregiver (parent most involved in child’s day-to-day life).
11
Q
Counsel for the Child
A
- Cts can appoint counsel/(“GAL”) for child in a custody dispute, but this is typically only done if counsel/GAL can provide substantial assistance in determining what is in the child’s best interest
12
Q
Interference with the Parent-Child
Relationship
A
a. Tortious Injury
- A child may not recover against one who tortiously injures their parent, but a parent may recover when a child is tortiously injured
b. Interference with Custody
- A parent whose lawful custody is interfered w/ may recover tort damages in actions for abduction/enticement.
- In addition, parties who conspire to conceal info about newborn child’s birth/location may be held liable for their participation in a civil conspiracy.
13
Q
TYPES OF CUSTODY: Joint Custody
A
- There are many iterations of joint custody, including joint physical custody & joint legal custody.
- When determining whether joint custody is appropriate, courts often consider:
- Fitness of both parents
- Whether parents agree on joint custody
- Parents’ ability to communicate & cooperate concerning child’s well-being
- Child’s preference
- Level of involvement of both parents in child’s life
- Geographical proximity of the 2 homes
- Similarity/dissimilarity of homes
- Effect of the award on child’s psychological development
- Parents’ ability to physically carry out the joint custody order
- In most jurisdictions, joint custody is encouraged & will be awarded if the parties agree.
- However. cts will not award joint custody if parents are openly hostile/unable to communicate,
14
Q
Sole Custody
A
- Sole custody can be awarded to 1 parent if there is strong evidence showing it is in best interest of child.
- If ct awards sole custody, other parent will almost
always be entitled to reasonable visitation w/ child. - It’s very hard to deny a parent any visitation unless some type of harm to child will result.
15
Q
Custody to a Nonparent
A
- In disputes between parents & 3rd parties, decision does not rest solely on child’s best interest.
- A natural parent has a constitutional right to raise their child.
- Absent voluntary relinquishment, parent is entitled to custody unless nonparent can show that it will result in harm to child/parent is unfit.
- However, based on special circumstances (abandonment, neglect, or abuse), a ct may find biological parent has lost right to rear child, & nonparent should get custody.
